Just in time for Christmas, a federal judge has ordered MGA Entertainment to stop production and sales of Bratz. It’s a major victory for Mattel and Barbie–a jury had found in favor of Mattel’s claim of copyright infringement, but it was not clear whether this finding applied only to the original Bratz dolls or to the entire line.
This case is relevant to the comics world for several reasons, even if you don’t count Barbie’s multiple marriages to GI Joe and Mego Batman.
At the very least, the Bratz ruling illustrates what’s at risk for a company that builds its brand on a derivative work from someone else’s copyrighted images. Consider the recent discovery that an early Emily the Strange drawing was a clear copy of a character from a children’s book, from the character’s appearance to her cats to the identifying description as “strange.” This could arguably be the smoking gun in a copyright infringement lawsuit–while subsequent images may not have copied the book in such a blatant way, core similarities still remain.
However, there’s an even more direct connection. The judge in Bratz case, the Hon. Stephen G. Larson, is also presiding over the Siegel heirs’ Superman and Superboy lawsuits. Judge Larson’s reasoning in the Bratz ruling may provide clues as to how he will see the relationship between the Superman material in Action Comics #1 and subsequent works. Moreover, the Bratz case also involved the use of Mattel’s copyrighted material in the Bratz trademarks. Although the specific legal issues aren’t exactly the same, it’s possible to infer from the judge’s reasoning that he might be favorably inclined toward the Siegels’ argument that their copyright interest gives them a share of the trademarked Superman “S” symbol.
That said, the Bratz ruling also highlights what I’ve previously referred to as the Achilles’ heel of the March 2008 ruling that awarded the Siegels half of the copyright in the Superman material in Action #1–namely, the similarity between Action #1 and the cover images that appeared in promotional house ads. Due to a technicality, the Siegels’ claim did not extend back to these house ads, but Judge Larson determined the only thing that these ads gave DC was ownership of “the image of a person with extraordinary strength who wears a black and white leotard and cape.” Nonetheless, it’s conceivable–though by no means certain–that a panel of judges hearing the case on appeal might find the similarity to be more substantial.
Of course, this is all speculative reading of judicial tea-leaves–the Superman case and Emily the Strange have their own distinct facts and legal issues. The one thing that is certain: if the MGA injunction is not struck down on appeal or settled out, Bratz must be destroyed.
December 5th, 2008 at 1:37 am
How is Bratz derivative of Barbie?
December 5th, 2008 at 8:10 am
This is how and the reason it isnt the same as the Superman case:(from the Reuters story) “A former Mattel Barbie designer Carter Bryant, who invented the Bratz concept (was) under contract to Mattel. A jury later ruled Bryant had secretly sold the concept to MGA.”
December 5th, 2008 at 8:12 am
Mattel claimed that the creator of Bratz designed the doll while still working for Mattel. According to his contract, that would make the designs property of Mattel.
December 5th, 2008 at 8:41 am
Excellent question!
I condensed things quite a bit in the description above, so I can see how the connection be a little confusing. But as we can see, what I left out is actually another way the case resonates with the Superman case–again, not in point-to-point correspondence, but in a shared thematic pattern.
The issue: a creator’s contract ascribing copyright in the creator’s work to the hiring company. In the Bratz case, the jury found, and the judge agreed, that the dolls were designed while their creator had an exclusive contract with Mattel. The jury found, and the judge agreed, that in accordance with the contract Mattel holds the copyright to the initial design, the dolls based upon them and the further development of the Bratz line.
The judge’s comparison of the initial and later material is something a strategic lawyer would note in order to glean tactical insight for a similar case. With regard to Emily, for example, the judge’s reasoning as to substantial similarity provides useful material for a clever plaintiff lawyer looking to argue that later adaptations, for all their differences, are nonetheless themselves derived from an earlier derivative work.
The same goes for Superman, where later variants on an earlier form even more directly in play. The distinction between the Superman of Earth-1 and Earth-2, however compelling, may not stand up in a court of law, at least to the same degree. The same goes for the apparent differences between the Supermen of various reboots. A judge could decide instead that they all express copyrighted elements found in the material in Action Comics #1 (and whatever else the Siegels might gain).
With regard to potential consequences, there is a key difference between Emily and Superman. Emily is closer to the Bratz case, in that Emily arguably involves the unauthorized adaptation of someone else’s copyrighted material. Should a lawsuit be filed, the consequences could be equally severe short of a settlement or success on appeal.
The current issue in the Superman case, however, is the allocation of profits from lawful adaptations that are arguably co-owned. Even if the Siegels win their point, DC can keep publishing the material–they just have to share the proportional amount of profit.
Perhaps even more interesting is what the Siegels are trying to win with regard to the Superman trademark. Tucked in their complaint is a potential bombshell: an assertion that since their copyrighted material is in the Superman “S” symbol, they should have the right to exploit that trademark & their copyrighted materially commercially without being stopped by DC. Were the judge to agree, this could arguably allow the Siegels to authorize their own derivative works, such as a separate line of Superman comics and films.
All of which takes us far afield of Barbie, but from a legal perspective it’s fascinating stuff.
December 5th, 2008 at 12:05 pm
Good column and follow up!
Thanks for this.
December 5th, 2008 at 6:06 pm
Thanks for all the explanations…I was just being too lazy to look this up
…different, but yeah, some definite parallels to the Siegel case, this precedent giving insight into the other.
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